TEXT: The Prevention of Smuggling Act 1977, serves as a legislative instrument aimed at curtailing the pernicious activity of smuggling within the territorial jurisdiction of Pakistan. The statute, by virtue of its purview, extends to the entire country and came into effect on 16th May, 1977. In order to effectively achieve its objective, the Act defines key terms such as "associate," "prescribed," "property," "property acquired by smuggling," "relative," "smuggling," "Special Appellate Court," and "Special Judge" in its preliminary chapter. These definitions serve as the foundation for the implementation and enforcement of the Act.
The Prevention of Smuggling Act 1977, in its Chapter 2, enumerates the provisions regarding preventive detention, which empowers the Federal Government or a Provincial Government to detain an individual if they suspect that the person is likely to engage in smuggling activities. Preventive detention is an exceptional measure that is employed when the conventional law enforcement mechanisms are deemed insufficient to thwart the nefarious activities of smugglers that engage in smuggling. Under Chapter II, the detention order is passed in writing by the Government and directed towards a police officer or any other individual who is authorized to arrest the person mentioned in the order. Once arrested, the person is to be committed to custody as specified under the act, and the conditions of detention, including maintenance, communication with others, and discipline, are determined by the Federal Government.
Furthermore, the chapter also lays down the procedure for communicating the grounds for detention to the arrested person. The Government must communicate the grounds for detention to the person detained at the earliest possible opportunity, but not later than 15 days from the date of detention. The arrested person is also afforded the opportunity to make a representation against the detention order, which is then considered by the Government before arriving at a decision. The Government, however, has the discretion to refuse to disclose facts that it deems would be against the public interest. The chapter also provides for powers to deal with absconding persons, if the government believes that a person in respect of whom a detention order has been made is absconding or hiding, they may send a report to the Magistrate to initiate proceedings under the Code of Criminal Procedure, or they may direct the person to appear before a specified officer. If the person fails to comply with the direction, they are punishable with imprisonment up to two years or fine.
If a police officer receives credible information that a person against whom an order of arrest and detention has been made is within their jurisdiction, they may arrest the person without a warrant. The arrested person will then be committed to custody as specified under subsection (5) of section 3 or if there is any requisition from the police officer or other person to whom the detention order has been addressed for execution, he shall commit the person arrested to the custody of such police officer or other person.
When a person is arrested and detained, the government has certain procedures in place to make sure that the detention is fair and just. To do this, they have set up Review Boards. These boards are made up of a Chairman and two other people who are or have been judges, and they are chosen by the Chief Justice of Pakistan. The person being detained cannot be held for longer than three months unless the Review Board says there is a good reason for it. If the detention is continued for longer than three months, the Review Board will review the case again every three months to make sure there is still a good reason for it.
This provision of preventive detention finds its parallel in the Unlawful Activities (Prevention) Act 1967 of India, which also empowers the Central Government or the State Government to detain a person with a view to preventing him/her from committing any unlawful activity. The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 of India also prescribes preventive detention for the offence of smuggling. Besides, it shares similarities with the US statutes such as the USA PATRIOT Act 2001, and the National Defense Authorization Act of 2013, which provide for preventive detention of individuals deemed to be a threat to national security.
The Customs Act of 1969 and the Prevention of Smuggling Act of 1977 are required be aligned and harmonized to better address the issue of smuggling and enforce provisions of preventive detention. The latter statute is in need of a few amendments. One potential amendment would be to remove the words "but, in chapter II, relates only to the taking of goods out of Pakistan" from the definition of smuggling in Clause (f) of Section 2(1) of the Prevention of Smuggling Act. This would allow the provisions of Chapter II to apply to all forms of smuggling, whether goods are being taken out of or brought into Pakistan, and would enable Pakistan Customs to detain suspect smugglers whether engaged in bringing in or taking out smuggled goods. Another amendment that could improve Customs' ability to combat smuggling is the delegation of preventive detention powers under Chapter II of the Prevention of Smuggling Act to the Collector Customs/Director Intelligence and Investigation-Customs within their respective jurisdiction. This would allow field officers to exercise statutory powers of preventive detention without difficulty, creating a stronger deterrent against smugglers. Currently, the powers of preventive detention are vested in Deputy Commissioners of Districts through the instrument of Maintenance of Public Order, which is problematic as a Deputy Commissioner can detain a suspect for various offenses, including smuggling, for up to three months, but a Collector Customs/Director Customs Intelligence cannot detain a suspect smuggler. This anomaly is especially noteworthy given that Pakistan Customs is the lead anti-smuggling agency in the country.
The provisions of chapter II are founded on the legal principle of proportionality, where the restriction of individual rights is justifiable if it is proportional to the objective of preventing and deterring smuggling. The chapter also adheres to the legal maxim of "innocent until proven guilty" by providing for a fair and just review process for detention orders. Additionally, the chapter also aligns with the principle of "due process" by providing for communication of grounds for detention, representation against detention order and review of detention order by an independent body.
The Prevention of Smuggling Act 1977, Chapter III, enumerates the provisions pertaining to security and other proceedings, which empowers the Special Judges to take action against individuals suspected of smuggling. The Act grants the Special Judge with a plethora of powers to combat activities of smuggling and ensure that justice is served.Section 8 of the act grants the Special Judge the power to require a person suspected of smuggling to appear before him/her if it is believed that there is sufficient ground for proceeding. This power serves as an initial step in the investigation process and enables the Special Judge to initiate proceedings against the suspect based on credible information.
In the event that there is not enough ground for proceeding under Section 8, Section 9 of the act empowers the Special Judge to direct a Magistrate or police officer to conduct a preliminary inquiry into credible information about a person indulging in smuggling. The inquiry report submitted by the Magistrate or police officer serves as the basis for the Special Judge to proceed under Section 8, in case the report finds sufficient grounds for proceeding. If not, the report may be filed, and the matter closed.
Section 10 of the act grants the Special Judge the power to proceed against a person accused of smuggling. It lays out the process of issuing an order in writing and the requirement for the accused to appear before the court. Provisions for issuing summons or warrants for arrest, if necessary, are also included in the Section. This section serves as the foundation for initiating proceedings against the accused and ensuring that justice is served.Further more, Section 11 of the act allows the Special Judge to report to a Magistrate in the event that a warrant of arrest has been issued and the accused is avoiding arrest. It also allows the Magistrate to take proceedings under sections 87, 88, and 89 of the Code of Criminal Procedure, 1898, in regards to the accused and their property. This section serves as a measure to ensure that the accused is brought to justice, even if they evade arrest.
The provisions of the Prevention of Smuggling Act 1977, Chapter III, find their parallels in the US statutes such as the Racketeer Influenced and Corrupt Organizations Act (RICO) 1970 and the Tariff Act of 1930, which provide for special proceedings against individuals involved in smuggling and related activities. Additionally, in India, the Unlawful Activities (Prevention) Act 1967 also lays down similar provisions for special proceedings against individuals suspected of being involved in illegal activities.
Chapter four of the Prevention of Smuggling Act 1977, lays out the rules and procedures for the forfeiture of property that has been acquired through smuggling. This provision serves as a deterrent measure against smuggling by targeting the proceeds of such illegal activities and denying the smugglers the benefits of their illicit trade. According to Section 30, it is illegal for any person to hold property that was acquired through smuggling, and any such property is subject to forfeiture to the Federal Government. This provision serves as a legal basis for the forfeiture of property acquired through smuggling, and serves as a means of denying the smuggling establishments the proceeds of their illegal activities. Section 31 of the act lays out the process by which a Special Judge may issue a notice to a person suspected of holding property acquired through smuggling, asking them to show cause why the property should not be forfeited. The notice will specify a time frame (not less than 30 days) for the person to respond and provide information about the sources of the property, the evidence they have, and other relevant details. This provision serves as an opportunity for the person to provide an explanation for the source of the property and contest the forfeiture proceedings.
Section 32 of the act describes the steps that a Special Judge may take after considering the explanation and evidence provided in response to the notice. The Special Judge may record a finding whether the property in question was acquired through smuggling, and if so, declare that it will be forfeited to the Federal Government and vest in that government free of encumbrances. This provision serves as the legal basis for the forfeiture of the property, and the transfer of ownership to the Federal Government. Section 33 of the act states that in any proceedings under this chapter, the burden of proving that a property is not property acquired by smuggling shall be on the person to whom the notice is issued, and any relatives or associates on whom a copy of the notice was served. This provision ensures that the burden of proof is on the person contesting the forfeiture proceedings.Section 34 of the act describes the option for the person to pay a fine in lieu of forfeiting the property. This provision serves as an alternative to forfeiture of the property and allows for the person to avoid losing their property if they are willing to pay a fine.
The provisions of the Prevention of Smuggling Act 1977, chapter four, find parallels in the US statutes such as the Comprehensive Crime Control Act of 1984 (CCCA) and the Anti-Drug Abuse Act of 1988, which provides for the forfeiture of property acquired through illegal activities. Additionally, in India, the Narcotic Drugs and Psychotropic Substances Act, 1988 also lays down similar provisions for forfeiture of properties acquired through illegal activities. Title 18, Section 1963 of the U.S. Code (The Racketeer Influenced and Corrupt Organizations Act (RICO) of 1970) provides for the forfeiture of property that is used in or derived from racketeering activity. This can include real estate, vehicles, bank accounts, and other assets that were used to facilitate smuggling or other illegal activities.
The forfeiture of property of smugglers engaging in smuggling activities can be justified under the principle of "crimenfalsi" / the "crime of fraud." This principle holds that any property acquired through fraudulent or illegal means is subject to forfeiture as it is deemed "ill-gotten" or "unlawfully obtained." The forfeiture serves as a deterrent measure against such illegal activities, by denying the smugglers the benefits of their illicit trade. Additionally, the forfeiture of property can also be justified under the principle of "in rem" jurisdiction, which holds that a court can exercise jurisdiction over a thing rather than a person. In this case, the property itself is considered to be the offender and is subject to forfeiture as a punishment for the illegal activities it was associated with. Furthermore, the principle of "punitory forfeiture" also applies, which states that the forfeiture serves as a punishment for the illegal activity rather than just a means of depriving the offender of the proceeds of their crime.
Chapter V of the Prevention of Smuggling Act 1977 covers various provisions related to the appointments of Special Judges and other associated matters. Section 44 grants the Federal Government the authority to appoint as many Special Judges as required and determine the jurisdiction of each. These judges must have previously held the position of a Sessions Judge. Section 45 allows for the transfer of cases from one Special Judge to another for the sake of justice or for the convenience of parties and witnesses. Section 46 grants the Federal Government the power to establish as many Special Appellate Courts as necessary, each consisting of a Judge from a High Court. The jurisdiction and territorial limits of each court are specified. It also includes provisions for temporary replacement of judges and for the transfer of appeals or revisions from one Special Appellate court to another. Lastly, Section 47 enables the Federal Government to appoint Special Prosecutors, who must be advocates of a High Court for at least five years, and authorize them to conduct proceedings under the act on behalf of the government.
The Prevention of Smuggling Act 1977 is a thorough law that addresses the problem of smuggling within Pakistan's territory. It establishes a strong framework for implementing and enforcing measures to stop and discourage smuggling, while also safeguarding individuals' rights. The Act repealed the Prevention of Smuggling Ordinance 1977 and replaced it. However, it is worth noting that the Act is not often invoked by Pakistan Customs which needs to be usedmore often particularly with reference to forfeiture of property acquired through proceeds of smuggling and preventive detention of suspect smugglers.
Copyright Business Recorder, 2023
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